Administration Considers Flexibility on KSM Trial

The administration may be laying the groundwork for some major backpedaling:

The Obama administration prefers a civilian trial for the alleged 9/11 mastermind, but says that in the face of public and political opposition it must be open to a military tribunal.

In an interview published Monday in The New York Times, Attorney General Eric Holder said, "I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side."

However, Holder did not rule out a military trial for Khalid Sheikh Mohammed, saying, "You have to be flexible." [AP]

As we have pointed out previously, Holder should have recused himself from this entire transaction given that his former law firm represented various detainees.

And administration officials have repeatedly claimed that KSM will be found guilty. Doesn't that taint the jury pool?

KSM Terrorism Trial To Get Venue Change

Moving this trial out of New York City is a start, but the administration needs to abandon the entire ill-advised idea of trying these defendants in criminal court:

Facing growing opposition to its plans to hold the Sept. 11 terrorist trial in New York City, the Obama administration is considering moving the proceedings elsewhere.

Two administration officials, speaking on condition of anonymity, said Friday the Justice Department is drawing up plans for possible alternate locations to try professed 9/11 mastermind Khalid Sheikh Mohammed and four alleged accomplices in case Congress or local officials prevent the trial from being held in Manhattan.

The Washington Post reports that Congress may try to block federal criminal trials for detainees:

Sen. Lindsey O. Graham (R-S.C.) plans to introduce a bill next week that would prohibit funding of a federal trial for Mohammed and other Sept. 11 defendants, in an effort to force the case into a military tribunal. An earlier such legislative effort failed, but a spokesman for Graham said that the senator has been taking the pulse of his colleagues and that "momentum has been building."

The same Post article says that the Gitmo jail may stay in operation longer than the administration that wants to shut it down:

The closure of the military detention center at Guantanamo Bay, Cuba, is beginning to look like a protracted and uncertain project for the Obama administration as political, legal and security concerns limit the president's options.

Having blown the one-year closure deadline set last January in an executive order, the administration is planning to transfer some detainees to a state prison it hopes to acquire in Illinois. But there appears to be little mood in Congress to provide the administration with either the funding for the prison or the authority to transfer detainees who will be held indefinitely.

Senate to Investigate Ft. Hood Killing Spree

The inevitable Congressional inquiry into the Ft. Hood massacre:

Sen. Joe Lieberman announced [on November 8] that he intends to lead a congressional investigation into the mass shooting at Fort Hood, saying the attack could qualify as a "terrorist act" rooted in Islamic radicalism -- the worst since 9/11.

The Independent Democrat, who chairs the Senate Committee on Homeland Security and Governmental Affairs, said there were "strong warning signs" that the alleged gunman, Maj. Nidal Malik Hasan, was an "Islamist extremist."

"If that is true, the murder of these 13 people was a terrorist act and, in fact, it was the most destructive terrorist act to be committed on American soil since 9/11," Lieberman [said].

Meanwhile, in a report on the Hasan case, Stratfor, the global intelligence clearinghouse, says that separating "the wheat from the chaff" is on one of the big problems in national security investigations:

Many leads are based on erroneous information or a misidentification of the suspect — there is a huge issue associated with the confusion caused by the transliteration of Arabic names and the fact that there are many people bearing the same names. Jihadists also have the tendency to use multiple names and identities. And there are many cases in which people will falsely report a person to the FBI out of malice. Because of these factors, national security investigations proceed slowly and usually do not involve much (if any) contact with the suspect and his close associates. If the suspect is a real militant planning a terrorist attack, investigators do not want to tip him off, and if he is innocent, they do not want to sully his reputation by showing up and overtly interviewing everyone he knows. Due to its controversial history of domestic intelligence activities, the FBI has become acutely aware of its responsibility to protect privacy rights and civil liberties guaranteed by the Constitution and other laws.

Stratfor also explains that in a departure from the standard operating procedure, the Army’s Criminal Investigation Command (still known by its old acronym CID) rather than the FBI is running the Hasan investigation:

As the premier law enforcement agency in the United States, the FBI will often assume authority over investigations where there is even a hint of terrorism. Since 9/11, the number of FBI/JTTF offices across the country has been dramatically increased, and the JTTFs are specifically charged with investigating cases that may involve terrorism. Therefore, we find the FBI’s absence in this case to be quite out of the ordinary.

However, with Hasan being a member of the armed forces, the victims being soldiers or army civilian employees and the incident occurring at Fort Hood, the case would seem to fall squarely under the mantle of the Uniform Code of Military Justice (UCMJ). From a prosecutorial perspective, a homicide trial under the UCMJ should be very tidy and could be quickly concluded. It will not involve all the potential loose ends that could pop up in a federal terrorism trial, especially when those loose ends involve what the FBI and CIA knew about Hasan, when they learned it and who they told. Also, politically, there are some who would like to see the Hasan case remain a criminal matter rather than a case of terrorism. Following the shooting death of Luqman Ameen Abdullah [in Detroit] and considering the delicate relationship between Muslim advocacy groups and the U.S. government, some people would rather see Hasan portrayed as a mentally disturbed criminal than as an ideologically driven lone wolf.

Despite the CID taking the lead in prosecuting the case, the classified national security investigation by the CIA and FBI into Hasan and his possible connections to jihadist elements is undoubtedly continuing.

Update: The Army has charged the shooter with 13 premeditated murder counts under the UCMJ (making him eligible for the death penalty if found guilty), but as yet no charges related to terrorism or treason. Additional charges may be forthcoming, however.

Former AG: Don't Try Terrorists In Civilian Courts

In a Wall Street Journal opinion piece, former U.S. Attorney General Michael Mukasey, who as a judge presided over the 1995 federal terrorism prosecution of Sheik Omar Abdel Rahman and others, argues that putting terrorists on trial in civilian courts is a bad idea:

The Obama administration has said it intends to try several of the prisoners now detained at Guantanamo Bay in civilian courts in this country. This would include Khalid Sheikh Mohammed, the mastermind of the Sept. 11, 2001 terrorist attacks, and other detainees allegedly involved. The Justice Department claims that our courts are well suited to the task.

Based on my experience trying such cases, and what I saw as attorney general, they aren't. That is not to say that civilian courts cannot ever handle terrorist prosecutions, but rather that their role in a war on terror—to use an unfashionably harsh phrase—should be, as the term "war" would suggest, a supporting and not a principal role.

The challenges of a terrorism trial are overwhelming. To maintain the security of the courthouse and the jail facilities where defendants are housed, deputy U.S. marshals must be recruited from other jurisdictions; jurors must be selected anonymously and escorted to and from the courthouse under armed guard; and judges who preside over such cases often need protection as well. All such measures burden an already overloaded justice system and interfere with the handling of other cases, both criminal and civil.

Moreover, there is every reason to believe that the places of both trial and confinement for such defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not.

...Moreover, the rules for conducting criminal trials in federal courts have been fashioned to prosecute conventional crimes by conventional criminals. Defendants are granted access to information relating to their case that might be useful in meeting the charges and shaping a defense, without regard to the wider impact such information might have. That can provide a cornucopia of valuable information to terrorists, both those in custody and those at large.

...Moreover, it appears likely that certain charges could not be presented in a civilian court because the proof that would have to be offered could, if publicly disclosed, compromise sources and methods of intelligence gathering. The military commissions regimen established for use at Guantanamo was designed with such considerations in mind. It provided a way of handling classified information so as to make it available to a defendant's counsel while preserving confidentiality. The courtroom facility at Guantanamo was constructed, at a cost of millions of dollars, specifically to accommodate the handling of classified information and the heightened security needs of a trial of such defendants.

Nevertheless, critics of Guantanamo seem to believe that if we put our vaunted civilian justice system on display in these cases, then we will reap benefits in the coin of world opinion, and perhaps even in that part of the world that wishes us ill. Of course, we did just that after the first World Trade Center bombing, after the plot to blow up airliners over the Pacific, and after the embassy bombings in Kenya and Tanzania.

In return, we got the 9/11 attacks and the murder of nearly 3,000 innocents. True, this won us a great deal of goodwill abroad—people around the globe lined up for blocks outside our embassies to sign the condolence books. That is the kind of goodwill we can do without.

Federal Terrorism Trial: An Insider's Account

From City Journal: A NYC resident chronicles his service on a federal terrorism jury:

The case was one of the most significant in the U.S. government’s battle against terrorism. It pitted the United States against Monzer al-Kassar, one of the world’s most successful—the prosecutors would say notorious—arms dealers. Whether it established any significant legal precedents would be left for the appellate lawyers to debate....I was a member of the jury, and I kept a daily journal, recording my own reactions to the lawyers, the witnesses, and the unfolding drama. Throughout the trial, the jurors heeded the judge’s admonitions not to discuss the case. But when it was over, I reconvened the jurors to ask them about their recollections. This is our story...